Mayor, Etc., of Borough of Rutherford v. Hudson River Traction Co.

• Decision Date: 26 February 1906
• Citation: 63 A. 84,73 N.J.L. 227
• Parties: MAYOR, ETC., OF BOROUGH OF RUTHERFORD v. HUDSON RIVER TRACTION CO.
• Court: New Jersey Supreme Court

63 A. 84

73 N.J.L. 227

MAYOR, ETC., OF BOROUGH OF RUTHERFORD

v. HUDSON RIVER TRACTION CO.

Supreme Court of New Jersey.

Feb. 26, 1906.

(Syllabus by the Court.)

Application by the state, on the relation of the mayor and council of the borough of Rutherford, for a writ of mandamus to the Hudson River Traction Company. Writ granted.

Argued November term, 1904, before FORT and PITNEY, JJ.

John M. Bell, for relator. Edmund W. Wakelee, for respondent.

PITNEY, J. This is a rule to show cause why a mandamus should not be issued against the Hudson River Traction Company, requiring it to proceed forthwith to macadamize a section of Park avenue in the borough of Rutherford extending from the southerly side of Ridge Road to the southerly side of Newell avenue, with six-inch macadam pavement, to be laid from gutter to gutter, as provided in section 9 of an ordinance of the borough approved March 5, 1895, whereby the right to construct, maintain, and operate a street railway in certain streets within the borough (including Park avenue) was granted to the Union Traction Company, the predecessor in title of the respondent The matter has been heard upon an agreed statement of all the facts in the case. From this it appears that the Union Traction Company was incorporated November 2, 1894, under the general traction act of March 14, 1893 (P. L. 1893, p. 302; Gen. St. p. 3235); that, having filed in the office of the Secretary of State a description and map of its proposed line of railway, this company, on December 10, 1894, made application in writing to the mayor and council of the borough of Rutherford for the location of its tracks and for permission to construct, maintain, and operate a street railway upon certain streets of the borough. Upon this application the ordinance in question was passed, granting leave accordingly, and establishing the terms, conditions, and restrictions upon which the railway might be constructed, maintained, and operated. Among the lines of railway provided for by the ordinance was a double line of tracks upon Park avenue from the Erie Railroad southerly to the borough limits; the tracks to be laid equidistant from the center line of the avenue, the inside rails being 4 feet 4 inches apart, and the gauge of the tracks being 4 feet 8 1/2 inches. Allowing for the width of the rails, therefore, the total width of the tracks is approximately 14 feet. The ordinance expressly declares that the privileges mentioned therein are granted to the Union Traction Company, its successors and assigns, "subject, however, to the agreements, conditions, and restrictions which are imposed and mentioned in this ordinance," and expressly declares (if that were necessary) that the grant is made in consideration of those agreements, restrictions, and conditions. Section 9 of the ordinance requires the Union Traction Company to macadamize Park avenue from Depot square to the southerly side of Ridge Road at the time of constructing its road, and to macadamize the said avenue from the southerly side of Ridge Road to the southerly side of Newell avenue within seven years from the passage of the ordinance, with six-inch macadam laid from gutter to gutter.

It appears that, after its passage and approval, this ordinance was duly accepted in writing by the Union Traction Company under its corporate seal, and the acceptance filed with the borough clerk as required by law. Afterwards the company took possession of Park avenue and constructed a double line of railway tracks thereon, and operated cars upon it as a portion of its through line of street railway extending from Arlington through the borough of Rutherford to Hackensack. On November 26, 1894, the Union Traction Company gave a mortgage covering all of its property and franchises, then owned or thereafter to be acquired, and having subsequently made default in payments due thereon, the mortgage was duly foreclosed in the Court of Chancery of this state, and the property and franchises of the company, including its property and franchises in the borough of Rutherford, were sold at public auction, pursuant to a decree of the court, to one Giles, and a deed was made by one of the masters of the court conveying to him the property and franchises in question. In the statement of facts it is set forth that the purchase by Giles was made under and pursuant to the act of April 16, 1897, entitled "An act concerning the sale of the property and franchises of any corporation," etc. (P. L. 1897, p. 220), and that subsequently the Newark & Hackensack Traction Company was organized by Giles and others under the provisions of this act, and thereupon the property and franchises of the Union Traction Company sold to Giles became vested in the Newark & Hackensack Traction Company. Afterwards the latter company gave a mortgage covering all of its property and franchises, which, upon default, was foreclosed, and the property and franchises in question were sold under decree of the Court of Chancery, and conveyed to one Everdell, who afterwards conveyed the same to the present respondent, the Hudson River Traction Company; the latter company being a corporation organized under the general traction act of 1893, already referred to (P. L. 1893, p. 302; Gen. St. p. 3235). The latter company is now in possession of said property and franchises and its operation and using the double line of tracks so laid and constructed in Park avenue as a part of its street railway system, claiming the right to maintain and operate said railway in the borough of Rutherford, as the legal successor, by purchase, of the rights, privileges, and franchises granted to the Union Traction Company by the ordinance above mentioned. After the Hudson River Company acquired its title, it was notified in writing by the mayor and council of the borough to proceed to macadamize that section of Park avenue now in question, as provided in the ordinance; the seven years having expired. With this request it has not complied.

Section 7 of the traction act of 1893 (Gen. St. p. 3237) provides that, upon application being made to the common council for a location of street railway tracks, the council, after advertisement and hearing, "shall either pass a resolution refusing such location, or pass a resolution or ordinance as may be necessary or proper, granting the said location or any part thereof, under such lawful restrictions as they deem the interests of the public may require." Section 32 of the same act declares, in effect, that the consent of the council, whether given by resolution or ordinance, when accepted by any corporation created under the act, in a writing under its corporate seal, filed with the clerk of the public body, shall have the force and effect of a contract. It is insisted, however, by the respondent, that the power conferred by the Legislature upon the common council is limited to either denying the application for a local franchise or granting it subject to reasonable restrictions; and it is insisted that the imposition upon the company of the duty to pave with six-inch macadam the whole width of the street is not a reasonable restriction, but an attempted exercise of the power of taxation. Hence, it is said that this requirement was ultra vires the municipal corporation. But the question whether these restrictions are reasonable is a question of fact, and the burden of proof is upon him who asserts that the formal action of a municipal body contains elements so unreasonable as to render the action ultra vires. Ivins v. Trenton, 68 N. J. Law, 501, 53 Atl. 202, Id., 69 N. J. Law, 451, 55 Atl. 1132. This rule applies with peculiar force where it is asserted that the unreasonable element consists in its imposition of oppressive burdens upon the recipient of a public franchise, and it appears that the recipient has solemnly accepted the franchise, together with the burdens.

The respondent has failed to sustain the burden of showing the covenant for macadamizing the whole of Park avenue from gutter to gutter to be unreasonable. There is nothing in the facts of the case as presented to us from which we can determine it to be so; and, since the parties have stipulated that the facts they have placed before us are all the facts in the case, we must presume, and do presume, that the common council have not acted unreasonably in the matter. Nor is this a rash presumption, as applied to the present case. That section of the ordinance which relates to the paving in question (section 9) required that the traction company should replace the macadam pavement in Park avenue in as good condition as it should be found when the tracks were laid therein, and macadamize this avenue from Depot Square to the southerly side of Ridge Road, at the time of constructing its road, with 6-inch macadam, laid in the same manner as the macadam previously laid thereon, from gutter to gutter; should macadamize the same avenue from gutter to gutter, in like manner, from Ridge Road to the southerly side of Newell avenue, within seven years from the passage of the ordinance, and from the latter point to the borough limits in the same manner from gutter to gutter within 10 years; that on all other streets where macadam was already laid the company should replace the same in as good order as found, and keep the street between the tracks and for 18 inches on either side thereof in good order; and that on streets where no macadam was laid at the time of the ordinance the company should macadamize between its tracks and for the space of 18 inches on either side, and keep the same in repair. It will be seen that a discrimination was made, and, as we presume, an intelligent discrimination, between different streets, and between different portions of Park avenue, as to the time and mode of macadamizing, dependent, no doubt, upon varying conditions of travel and improvement. It is a matter of common knowledge that the ordinary wear and tear...